Television

Saturday, August 25, 2018

GateHouse: No one is above the law

Matthew T. Mangino

GateHouse Media

August 24, 2018

The President of the United States can and should be
indicted. This week, President Donald Trump’s former lawyer and trusted advisor
pleaded guilty to tax fraud, false statements to a bank and campaign finance
violations, and implicated the president in criminal activity.

Michael Cohen said under oath in open court that he acted
“in coordination with, and at the direction of, a candidate for federal office”
and “for the principal purpose of influencing the election.”

Prosecutors allege that” hush-money” payments Cohen arranged
for Karen McDougal and Stormy Daniels broke the legal limit on individual
donations to a political campaign and violated the law banning corporations
from giving directly to a candidate.

According to Politico, candidates are permitted to make
unlimited contributions to their own campaign, but that money must go through
their campaign committee. Cohen facilitated the payments through an outside
company, not the campaign — an unlawful act.

During the Watergate investigation, a memorandum prepared
for Special Prosecutor Leon Jaworski concluded that there was no legal bar to
indicting President Richard Nixon. The memorandum concluded, “As we understand
it, the conclusions regarding indictment of an incumbent president reached by
the Department of Justice, the U.S. Attorney’s office, and this office, are all
consistent: There is nothing in the language or legislative history of the
Constitution that bars indictment of a sitting president.”

Some Constitutional experts have argued that the president should
have immunity. If the president were indicted he would be burdened by pretrial
matters, the preparation for trial and the commitment of weeks or months in a
courtroom.

Constitutional scholar Jonathan Turley suggested in a recent
Washington Post piece immunity for the president “ignores a couple practical
considerations. First, it is highly unlikely that a president would be tried,
let alone convicted, while in office ... Even when sentenced, appeals can take
years.”

In May 1998, a distinguished constitutional scholar Ronald
W. Rotunda reached the conclusion that a sitting president can be sued or
indicted. According to The Atlantic, Rotunda confidentially advised
then-independent counsel Kenneth Starr that President Bill Clinton could be
indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state(ment)
that no one is ‘above the law,’” Rotunda wrote.

Starr’s team concluded that ”(I)t is proper, constitutional
and legal for a federal grand jury to indict a sitting president for serious
criminal acts that are not part of, and are contrary to, the president’s
official duties.”

Walter Dellinger, a former assistant attorney general and
the head of the Office of Legal Counsel at the Department of Justice, writing
for the New York Times, cited Clinton v. Jones. President Clinton had long
fought to stop a civil suit brought against him by Paula Jones. The case
ultimately reached the U.S. Supreme Court. The entire court agreed that the
fact that a federal court’s exercising of its constitutional power to hear a
case “may significantly burden the time and attention of the chief executive is
not sufficient to establish a violation of the Constitution.”

Dellinger concluded that “the mere indictment of a president
would not meet the stringent standard in Clinton v. Jones for presidential
immunity from ordinary legal processes.”

The argument that an indictment would be too demanding on a
sitting president is further blunted by the 25th Amendment that allows a
president to voluntarily transfer powers of his office to the vice-president
for a limited period of time.

When asked if a sitting president can be indicted Deputy
Attorney General Rod Rosenstein said. ”(T)he Department of Justice has in the
past, when the issue arose, opined that a sitting president cannot be
indicted.”

The opinion of the Department of Justice is not precedent.
The position of the DOJ can change and Rosenstein himself could change the
scope of the Mueller investigation. Trump can be indicted. The question is will
some prosecutor take the unprecedented action of indicting a sitting president
to affirm the notion that no one is above the law?

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

1 comment:

A law must consist of two parts: statute and regulation. The U.S. Supreme Court ruled in U.S. v. Mersky that, "regulations, called for by the statute itself, have the force of law…neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other." See also Bates v. United States, 581 F.2d 575, 579 (6th Cir. 1978); Chrysler Corp. v. Brown, 441 U.S. 281at 302 (SCOTUS - 1979); Manhattan General Equipment Co. v. C.I.R., 297 U.S. 129 (SCOTUS - 1936)

I recently told a U.S. Congressman that Mueller's Office of Special Counsel has no lawful authority and jurisdiction to prosecute anyone for anything because its existence is based solely upon a regulation without a statute and that makes it a nullity. A member of the B.A.R., himself, in his ignorance he replied that, "It's discretionary on the part of the Attorney General." Then that puts the AG above the law and in your op-ed entitled, "Matthew T. Mangino: No one is above the law," you make it clear that no one, not even the president, is above the law.

The Robert Mueller/Democrat Party investigation is a sham, scam, and a fraud. Your support of it is reprehensible for a man of the "law" and former prosecutor. If you were honest, you would reveal the scam in your op-eds – but, of course, you'd stand the chance of being ostracized, vilified, and even demonized by your brother and sister "Esquires" of the British Accreditation Registry. So, you'll have to either tell the truth now, or convince your Creator when you see him that dishonesty and deception were just a necessary part of your job and it was nothing personal.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.